HOSSAINI METHOR Vs. EMPEROR

JUDGEMENT

(1.) In our opinion the conviction in this case cannot be supported without unduly straining the language of Section 498, I.P.C. The charge is that the accused had enticed or taken away the complainant's wife from him with intent that she might have illicit intercourse with him. The complaint lodged was that the accused had enticed away the woman. There is not a word in the evidence about enticement. The only question therefore is whether there was any taking within the meaning of this section. We have gone through the whole of the evidence and find that it amounts to no more than this: that the complainant was informed by two of the witnesses, P.W. 4 and P.W. 5, that they had seen the wife of the complainant going away with the accused, his mother and his sister. The sister of the woman was also examined and her evidence is that two days after the occurrence, she went to a house at Ghusuri where she saw her sister and the accused in the same room. Although she speaks of seeing them in a room, what she meant was that they were inside a hut. That is made clear by the evidence of another witness. We are asked to infer from this that not only had the accused taken away the woman, but had taken her away with criminal intent. We do not think that is an inference justified by the evidence. Section 498 has no doubt been enacted for the protection of the husband's rights, and any disposition of the woman or any consent or willingness on her part would be perfectly immaterial to the guilt of the prisoner. At the same time, we think that there must be some influence operating on the woman, or co-operating with her inclination at the time the final step is taken which causes a severance of the woman from her husband, for the purpose of causing such step to be taken. The evidence here undoubtedly falls short of this. It is in our opinion not enough to constitute an offence under Section 498 that the woman left her husband's house or that she was afterwards seen passing along with the accused. It is not shown that she left by reason of any act or assistance proceeding from the accused.

(2.) The evidence does not show that the accused got her away or helped her in getting away from her husband, nor does it appear that after she had got away, the accused availed himself of her position in order to induce her to continue away from her husband. The woman's own evidence is that she left on account of the ill-treatment of her husband. But whether this is believed or not, we do not think that the evidence is sufficient to establish the complicity of the accused at all. The gist of the offence under Section 498 is in depriving the husband of his proper control over the wife for the purpose stated in the section, but as we have pointed out, there is no reasonable evidence in this case from which it can be said that the woman was not acting as a free agent throughout or that she was not at liberty to leave the house or that any allurement or inducement or encouragement was held out to her by the accused to stay away from her husband. Even if it be supposed that there was taking within the meaning of the section, we are far from being satisfied that the evidence shows that this was with criminal intent. The result is that this appeal is allowed, the conviction and sentence are set aside and the accused is directed to be set at liberty forthwith. The accused, who is on bail is discharged from his bail bond. Henderson, J.

(3.) I agree.